By Prem Prakash
(Research Fellow Punjabi University, Patiala)
1. Introduction. Over the past few months, there has been a raging debate about the relevance and effectiveness of the AFSPA in the insurgency affected states of J&K and the North East. To join the issue, an article “The Ten Commandments of AFSPA” written by Mr Pahrii Pou, published in The Sangai Express edition dated 12 Dec 11, has also expressed views against the existence of the Act in a rather rhetoric, immature and an absurd manner. The write-up intends to give out a set of so-called ‘Ten Commandments of AFSPA’, mockingly christening the SF as ‘GODs’ and their bullets as ‘Angels’. It intends to falsely and squarely implicate the SF for precipitating further insurgency and being ‘outsiders’ exercising ‘autocratic military rule’ with a sense of insensitiveness/irresponsibility as well as calling the Act – ‘racist’ and ‘draconian’ which supposedly provides the SF total immunity from HR tress-passage. The article seems to be driven by personal/vested motives or experiences of the writer with the SF, facts regarding which have been misconstrued, much against the spirit and ethics of truthful media expression.
2. AFSPA & its Rationale. It must be remembered that the Army is the instrument of last resort of the state and it has successfully tamed insurgencies & vicious terrorist movements. It is brought in only once the civil administration and police have failed to control the situation. Its operations have to be within a legal framework, which sets the rules of engagement, and also provides basic protection from prosecution (as available to the police under Sec 45 and 197 of CrPCs) for personnel acting in good faith. This is precisely what the AFSPA does and hence is a critical enabling legislation. Testimony to the relevance of the act lies in the fact that various Commission Reports incl HR forums recommending repeal of AFSPA and questioning its constitutionality under Indian Law (Article 4 on Civil & Political Rights), was rejected by supreme court calling the act necessary to prevent secession of NE States under Article 355 that empowers Central Govt to protect states from internal disturbances. The Supreme Court is the most respected institution in this country and has upheld the need and validity of this law. Far from being draconian, AFSPA is the bare minimum warranted provision in view of threats faced by the security forces. It is important that the security forces’ perspective is not lost in the clamour for annulment of the Act. AFSPA does in no way mean ‘Military Rule’. The AFSPA confers special powers upon Armed Forces of the Union of India in ‘Disturbed Areas’ when called upon by the state Government in the case of failure of administration or instability in the state. It needs iteration here that security forces have no role to play in the decision making process prior to actual deployment and lies entirely to the central/ state to declare an area as “disturbed” as a pre requisite for promulgation of AFSPA. In the given circumstances, the Security Forces’ perspective is governed by the administrative necessity of the Act, its relevance at the tac level and the risks of dilution in terms of undermining national security.
3. Legal Provisions & Restrained Approach. The principal articles of the Act empower the armed forces to undertake CI ops at tac level. Obviously, in their absence would render the security forces incapable of fulfilling their assigned role. It is therefore not at all surprising that while several activists often raise their voice against the law, the affected states are hesitant in recommending the annulment of the Act. Sec 7 offers protection to persons acting under this act i.e. no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Govt. However, army adheres to a zero tolerance policy against any infringements to the acts as well as HR violations and perpetrators are severely dealt with, as per army laws. Adequate checks and safeguards are built in the Act to prevent SF from assuming sweeping powers. The DO’S and DON’T’S include use of minimum force and protection is extended only to personnel discharging duties in good faith and not otherwise. Just to give a comparison, the newly enacted laws for Pak Army in Jun 11- ‘Action in Aid of Civil Power, FATA, PATA’ are far draconian which empower the Pak SF to detain a suspect up to 120 days, imprison indefinitely and conduct trials of suspects awarding death or life sentence just on testimony of any military officer. Therefore, AFSPA does not provide the SF, a “God” like status under “Martial Law Conditions” but ensures that checks and balances are still available to prevent its misuse.
In fact, contrary to popular perception, the AFSPA imposes tremendous self-restraint on soldiers like it permits for opening fire only when fired-upon etc.
4. HR Status. Another false impression created by certain human rights groups and organisations with vested interests is that the AFSPA provides immunity to the army in conducting excesses on the population. Notwithstanding the same, it may be noted that these violations have been dealt with sternly by armed forces unlike the large no of offenders in the civil society that roam free due to their “financial” and “political” clout. In fact, available data suggests that since 1990, on scrutiny of a total of 1511 cases of human rights abuse (registered against the SF) including by NHRC, nearly 98 % (1473) were found to be false/ with vested interests. Where culpability was established, nearly 144 soldiers including officers have been punished so far. There can not be a better example of military justice in a country where cases of ‘Afzal Guru or Kasab’ are still to be disposed off.
5. AFSPA Breeding Insurgency. The article claims that imposition of the AFSPA has led to the mushrooming of various UG gps. Nothing could be far from truth. An analysis of the historical facts clearly elucidates that the UG groups have mushroomed more as a consequence of partial lifting of AFSPA from disturbed areas coupled with political overtures. These areas have now become operating havens for the groups and they are now able to plan, extort and terrorise people without having any fear of retribution from the security forces. The more the number of groups, more are the anti national elements that have the power and money to meet their narrow divisive aims.
6. Conclusion. AFSPA is neither arbitrary nor suppressive in nature as claimed by certain disillusioned individuals/section of the society. Assigning responsibility to the Army without essential authority to ensure peace in affected area of jurisdiction not only lacks rationale but also sounds absurd. Armed forces are one of the best apolitical and professional guarantors of peace in the country and on many an occasion, they have taken a stance against intense political pressure in national interest by not allowing a free run to the anti national elements. The imposition of the AFSPA is again a political decision after due assessment by the government that the civilian administration and local state police are not enough to maintain the law and order in the state. Therefore it would not be correct to state that the security forces dictate terms to the democratically elected political representatives. On the contrary, being an arm of the Government, the armed forces are present only because the Government assess the situation to be unmanageable and can remove the armed forces whenever its assessment hints towards a return of normalcy. Unfortunately, removal of AFSPA has become an emotive issue and is seen in some quarters as the panacea for all ills. It should be remembered that the army was not responsible for bringing about insurgency and AFSPA is only an enabling provision for it to battle the insurgents or terrorists. Sarcasim and yellow journalism on subjects of this nature which affects the integrity of the nation under hidden agenda by sections inimical to India and that too by own scholars/intellectuals need complete ignoring. RTI provides enough strength to any citizen/organisation who is keen to know on actual incidents happened under AFSPA and action taken by Army/ Courts. Efforts need to be put in by various HR/ frontal organisation to create conducive environs so that Army is not deployed on ISI duties. If deployed support must be provided by civil societies than criticizing & ringing false alarm.
